* When the Illinois Supreme Court struck down the state’s eavesdropping law in March, many rejoiced. The overly harsh felony punishment for recording clearly public conversations and events was clearly being abused by law enforcement to harass individuals who were only attempting to protect themselves.

But with the Court’s action, we’ve gone from a crazily strict “all-party consent” statute to an insane “no-party consent” situation.

Not only can I now secretly record a private conversation with you without your knowledge, I can legally record a conversation between you and someone else without either of you knowing what I’m doing.

In other words, if I had wanted to (and I didn’t… I’m just sayin’) I could’ve recorded secret legislative party caucus meetings during the spring session and there was legally nothing that anybody could’ve done about it. Again, I wouldn’t do such a thing, but I could’ve if I had wanted to.

* I meant to write about that during the last couple weeks of session to spur some action, but it just fell through the cracks, as did the legislation designed to restore some common sense protections into the law. But various disagreements between law enforcement and privacy rights activists and between the House and the Senate killed the bill.

Ed Yohnka, with the Illinois Chapter of the American Civil Liberties Union, says he wishes the court hadn’t struck down the entire law, but sees this as an opportunity for a clean slate. Yohnka says the ACLU wants…

“The continuation of all-party consent, which people in Illinois have really grown accustomed to, but also a bill that would recognize the evolving and changing dynamics of modern technology,” he said. […]

Sen. Kwame Raoul (D-Chicago) says truly private conversations ought to still be protected. Raoul is the architect of new legislation to replace the old law.

“Right now we have a gaping hole in terms of our public policy as to how we protect such conversations,” he said. “There’s nothing in state law that protects the invasion of such privacy.”

The measure passed the Senate on the last day of the legislature’s spring session, but did not get a vote in the House. Raoul says he thinks the measure has a good chance of passing during the fall veto session.

I’m not so sure about that. I plan to write more about this for subscribers in the coming days, but there are some very real disagreements between the two chambers over how to proceed. And until those are resolved, we’re gonna continue to have no-party consent in Illinois.

By the way, there are clear constitutional protections which cover law enforcement’s behavior. They don’t have carte blanche, but private citizens do.

The right to privacy protects you against the government, not against someone else. (Other statutes regarding invasion of privacy might protect you, but those aren’t constitutional.)

“All party” consent may be the ACLU’s goal, but that goes too far. For example, the special ed kid who recorded the abuse he received from an awful teacher would be in violation of all-party consent. A businesswomen who recorded the shake-down from an alderman would be in violation. Maybe the law should focus on how the recordings are used rather than who gave consent.

Privacy seems like so last century. Droves and droves of people offer up their email streams to faceless corporations who then make billions marketing the data mined from scanning the communications. Many people carry cell phones, (smart or otherwise) which broadcast a wide ranging amount of data about themselves on a minute by minute basis. Most retail locations have some sort of video surveillance.

Then we have the governmental data streams of security/traffic cameras.

Seems to me that we have voluntarily given up any sense of privacy some time ago. It ain’t coming back.

Interesting and very good that you’re putting some light on this issue - I had no idea. I’m undecided whether it should be two party or one party consent between private parties, but no party consent (me recording a conversation between other people) is riduclous.

=== Why not? Did the guy who recorded Romney saying 49% get prosecuted? I don’t think anyone there consented. ===

1. That was in a different state… different laws.
2. I’m guessing that is considered a “public” event even if it was invite-only. One has less expectation of privacy giving a speech in front of 40 people than a one-on-one conversation in, say, an office.

I’m flummoxed by the ACLU’s position on this. It seems like they would be much more concerned by the prospect of public officials violating individual rights with no fear of accountability from a passerby with a cellphone and a YouTube account than by the possibility of private citizens invading each other’s privacy.

There’s a middle ground - “public” and “private” can be defined in the law, and where the lines get blurry, most judges will “know it when they see it.”

All party consent makes no sense - especially in a public, large-crowd setting where the voices of many people may be heard distinctly on a recording of a rally or an encounter with law enforcement.

“This does not mean, however, that recording of communications is now universally permitted in Illinois:

Recordings may still be subject to the “one-party” consent rule of the Federal wiretap act.
Communications reaching other states may be subject to the wiretapping laws of the remote state.
Secret recordings may still support an Illinois common-law claim for intrusion into the privacy of another. See, e.g., Narducci v. Village of Bellwood, 444 F. Supp. 2d 924, 938 (N.D. Ill. 2006).
Another Illinois statute, not necessarily affected by the decision in the Melongo case, makes it illegal to “videotape, photograph, or film” people without their consent in “a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom.” 720 Ill. Comp. Stat. 5/26-4(a) (scroll down).”

One party consent is the way to go. Almost every other state and the feds allow it. One party consent will still allow for the Donald Sterling’s of the world to be exposed. His mistress is the one party who consented to be recorded in that instance.

Rep. Nekritz and Sen. Raoul are both great lawyers, but there’s a valid argument that the language reverts by operation of constitutional law. If the Supreme Court struck down the definition of conversation in 14-1, the argument may be different. But the court only invalidated 14-2(a)(1)(A), because the breadth of two party consent interfered with First Amendment rights. In the late 70’s, Public Act 79-1159 added the constitutionally infirm language which turned Illinois from a one party to two party state. Now, I think, we go back.

==But the court only invalidated 14-2(a)(1)(A), because the breadth of two party consent interfered with First Amendment rights.==

No, that is just wrong. From the Melongo opinion: “We conclude as we did in Clark, 2014 IL 115776, that the recording provision of the eavesdropping statute (720 ILCS 5/14-2(a)(1) (West 2008)), burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. Thus, it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment. . . . Defendant raises an additional claim that is not present in Clark. She argues that what she describes as the “publishing provision” of the statute (720 ILCS 5/14-2(a)(3) (West 2008)), is also unconstitutional. The plain language of this provision criminalizes the publication of any recording made on a cellphone or other such device, regardless of consent. This alone would seem to be sufficient to invalidate the provision. . . . We, therefore, find the publishing provision to be overbroad as well.”

Subparagraphs (a)(1) and (a) (3) were thrown out entirely, on their face. The only thing that survives is (a)(2), a provision prohibiting the manufacture or possession of an “eavesdropping device”–a provision, I might add, that has never been prosecuted even once and serves no earthly purpose.

You make a fair point, (3) is gone, And it makes sense because, if you’re guilty of publishing under (3) you’re probably guilty of eavesdropping under (1). But that doesn’t address whether the law reverts to its previous state and restores one party consent under the previous (1). In any event, I wouldn’t take the chance on being the test ‘no party’ consent case. Although, I’m sure some folks are skittish about using the statute at the moment.

Not only can I now secretly record a private conversation with you without your knowledge, I can legally record a conversation between you and someone else without either of you knowing what I’m doing.